I am Director of Entitlement and Budget Policy for the Heartland Institute, Senior Advisor for Entitlement Reform and Budget Policy at the National Tax Limitation Foundation, General Counsel for the American Civil Rights Union, and Senior Fellow at the National Center for Policy Analysis. I served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush. I am a graduate of Harvard College and Harvard Law School, and the author most recently of America's Ticking Bankruptcy Bomb (New York: Harper Collins, 2011).
I write about new, cutting edge ideas regarding public policy, particularly concerning economics.

Why the Supreme Court Will Strike Down All of Obamacare

Barack Obama made a national laughingstock out of himself with his recent comments on the Obamacare law now before the Supreme Court. Obama said on Monday, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” (emphasis added).

President Obama is not stupid. But he thinks you are. He knows the Obamacare health care takeover was not passed by a strong majority. But he figures you’re so dumb he can rewrite recent history in plain sight. The law passed a House with a huge Democrat majority at the time by only 219-212. It did not get a single Republican vote, but the opposition was bipartisan.

The law also barely squeaked past a Senate filibuster despite an overwhelming 60 Senate Democrats, and even then humiliating buyoffs were necessary. Public opposition was so strong that the ultraliberal Democrat controlled Massachusetts, the only state to go for George McGovern in 1972, elected a Republican in a special election for Sen. Ted Kennedy’s seat, to terminate the Democrats’ filibuster-proof majority. That required final passage of the law improperly in violation of Congressional rules as a reconciliation measure, which is only to be used to clean up the budget and so cannot be filibustered.

And given that Obama is so certain you can’t remember what happened just two years ago, he is more than certain that you have never heard of the ancient history of Marbury v. Madison, where the 14-year old Supreme Court in 1803 took the then unprecedented step of overturning a provision of law adopted by a strong majority of a democratically elected Congress, in the Judiciary Act of 1789. That case was where the Supreme Court first recognized its power of judicial review, under which it is empowered to strike down laws found unconstitutional. As the Wall Street Journal observed on Tuesday:

“In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of these laws were passed by a ‘democratically elected’ legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by ‘strong’ majorities….probably stronger majorities than passed the Affordable Care Act.”

As a former constitutional law professor and President of the Harvard Law Review, Obama no doubt knows all about Marbury v. Madison and judicial review. But he figures he can safely assume a majority of you know nothing about it, and his party controlled media will not tell you anything concerning it at this inopportune moment. Hence, another classic example of what I have called Calculated Deception.

President Obama further assailed any Supreme Court decision ruling his Obamacare health care takeover unconstitutional as “judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.” Alexander Hamilton disagreed over 200 years ago in Federalist 78, writing, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. . . .”

Or, as the Wall Street Journal explained on Monday:

“Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.”

The Journal added, “Far from seeking an activist ruling, the Obamacare plaintiffs aren’t asking the Court to overturn even a single commerce clause precedent.”

In my role as General Counsel of the American Civil Rights Union, I filed 3 amicus curiae briefs with the Supreme Court in the Obamacare litigation. I also filed amicus briefs in the lower federal courts in the cases in Virginia and Florida.

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The court is supposed to differ to the Congress, unless a law is clearly unconstitutional.

In this case, opponents invent a novel theory that Congress can only regulate activity, not inactivity. Which is another way of saying Congress can not use its Commerce Clause power to force you to do something against his or her will.

There are plenty of cases where the Court has ruled otherwise. Most interestingly, in Heart of Atlanta vs United States, a hotel owner claimed that he could not be forced to enter into a commercial transaction (renting to a “negro”) against his will.

It is obvious that the regulation of health care crosses state boundaries. Drugs and medical supplies come across state lines about as often as packages from Amazon.com. Patients cross state lines all the time also, to visit the famous Mayo Clinic for example. And the economic effects of health care expenditures effects whole industries like the American automobile industry.

All of which means this is exactly the kind of interstate economic case where the Supreme Court has respected the will of the Congress for the last 80 years.

The government mandated that hotel owners have to rent rooms to minorities, didn’t it? Renting a room is a commercial transaction. The hotel owner was forced to enter into financial transactions against his will. Just like people who object to buying health insurance for political reason.

And what about those Emergency Rooms? Ronald Reagan signed a law that requires ERs to provide emergency care. Do you think this law requires the ER to buy medical supplies and doctor salaries and nurses’ salaries to take care of the uninsured? You betcha!

You’re misrepresenting Heart of Atlanta v US. Heart of Atlanta was already engaged in an activity, that of renting out motel rooms to interstate travelers. The court ruled the owner could not discriminate in the course of conducting that activity. Not at all the same thing. The case was neither argued nor decided on the basis of regulating inactivity.

“The issue at hand is not health care but health care insurance which is regulated at the state level.”

Then you will have to explain why their is a federal law, called COBRA, imposing certain regulations on insurance companies.

And, while you are at it, explain why this is federal law:

HIPAA is a federal law that: Limits the ability of a new employer plan to exclude coverage for preexisting conditions;

Provides additional opportunities to enroll in a group health plan if you lose other coverage or experience certain life events;

Prohibits discrimination against employees and their dependent family members based on any health factors they may have, including prior medical conditions, previous claims experience, and genetic information; and Guarantees that certain individuals will have access to, and can renew, individual health insurance policies.

What’s the matter? Didn’t the people who do your thinking (Drudge maybe?) give you an answer for that?

Those laws are regulations directed at businesses and employers, not individuals. In either of the scenarios you present would I be required to accept the employers offered insurance, whether I had pre-existing conditions or not; and I am not required by federal law to participate in a COBRA plan once I terminate my employment and by that action lose my health insurance plan.